Detailed Answer
Disclaimer: This article is for informational purposes only and does not constitute legal advice.
Under Kentucky law (KRS Chapter 394), a will may be admitted to probate either in common form or in solemn form. Each method sets out different proof requirements and carries different legal effects.
Common Form Probate
Common form probate is available when at least one attesting witness to the will resides in the county where the petition is filed. Instead of personal testimony, that witness files a sworn affidavit confirming they saw the testator sign the will and that the testator appeared of sound mind and free will. Once the affidavit is accepted, the court issues an order admitting the will to probate.
Key features of common form probate:
- Proof by affidavit of an attesting witness (KRS 394.040).
- Faster and less formal process.
- Creates prima facie evidence of due execution.
- Will may be contested within two years after probate.
Solemn Form Probate
Solemn form probate is required when no attesting witness is available locally or when a party requests formal proof. The court conducts an open-hearing or deposition in which witnesses testify under oath and the judge directly examines the evidence of due execution. After taking testimony, the court enters a final order admitting the will.
Key features of solemn form probate:
- Proof by in-court testimony of witnesses or by deposition (KRS 394.030).
- More time-consuming and formal process.
- Produces conclusive proof of due execution.
- Cannot be challenged once the order is entered.
Key Differences at a Glance
- Proof Method: Affidavit (common) vs. testimony before the court (solemn).
- Formality: Streamlined (common) vs. formal (solemn).
- Finality: Contestable within two years (common) vs. final and unchallengeable (solemn).
- Time & Cost: Lower (common) vs. higher (solemn).
For full statutory language, see KRS Chapter 394 – Wills and Their Probate.
Helpful Hints
- Confirm whether an attesting witness still lives in the county before filing.
- If no witness is available, prepare for solemn form probate to avoid delays.
- Keep original wills in a safe, accessible place to streamline common form probate.
- Consult a probate attorney early if you anticipate a challenge or lack witnesses.
- Track all deadlines: a contest to a common form probate must be filed within two years.